TBD | 2 PJI 3.2 | Pattern Jury Instructions

Federal law requires employers to provide reasonable accommodation to employees who are disabled² unless the accommodation would impose an undue hardship on the employer or pose a direct threat to the employee or others.³

To succeed on a claim that the employer has failed to provide a reasonable accommodation, the employee must prove:⁴

First, that the proposed accommodation would enable [him/her] to perform the essential functions of the job and that the accommodation is feasible for the employer under the circumstances; and Second, that the employee made a request for the accommodation that was sufficiently direct and specific so as to put the employer on notice of the need for an accommodation.

If the employee meets this burden, then the employer bears the burden of proving that the accommodation [plaintiff] proposed would have been an undue burden or direct threat.⁵ The employee need not show that the employer had discriminatory intent.⁶

A reasonable accommodation is a modification or adjustment to the work environment or to the manner in which a job is performed.⁷ A reasonable accommodation may include:⁸ [modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position; making existing facilities used by employees readily accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedule; reassignment to a vacant position; acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies; provision of qualified readers and interpreters; other similar accommodations for individuals with plaintiff's disabilities].⁹

A reasonable accommodation does not include changing or eliminating any essential function of a job, shifting any of the essential functions of the job to others, or creating a new position for the disabled employee.¹⁰ If [plaintiff] rejects a reasonable accommodation that is necessary to enable [plaintiff] to perform the essential functions of the position, and, as a result, cannot perform the essential functions of the position, [plaintiff] cannot be considered a qualified individual.

“Direct threat” means a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

An “undue hardship” is an action that would create significant difficulty or expense for [employer], considering the nature and cost of the accommodation, the overall financial resources of [employer], the effect of the accommodation on expenses and resources, and the impact of the accommodation on the operations of [employer], including the impact on the ability of other employees to perform their duties and the impact on [employer]’s ability to conduct business.

¹ A reasonable accommodation instruction may be appropriate in either disability or religious discrimination cases. see 42 U.S.C. § 2000e(j) (“The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”); 42 U.S.C. § 12111(8) (“The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”); ADA Amendments Act of 2008, Pub. L. No. 110-325 § 6(a)(1) (“Nothing in this Act alters the provision... specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.”). Although this instruction is focused on disability discrimination, it should be usable, with appropriate modification, for religious discrimination cases as well. see generally Trans World Airlines, Inc. v. Hardison,432 U.S. 63 (1977) (Title VII religious discrimination).

The Equal Employment Opportunity Commission guidelines concerning reasonable accommodation are at 29 C.F.R. §§ 1605 (religious discrimination) and 1630 (disability discrimination).
² Also, “[t]he duty to provide reasonable accommodation is a continuing one,... [that is] not exhausted by one effort.” Ralph v. Lucent Techs., Inc., 135 F.3d 166, 172 (1st Cir. 1998) (ADA). But a plaintiff may not base an ADA claim on the defendant’s denial of a request for accommodations where the plaintiff’s disability did not exist at the time of the request, but rather was allegedly caused by the defendant’s failure to honor the request. Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 31 (1st Cir. 2000) (ADA). Under the ADAAA, reasonable accommodation is not required for individuals who meet the definition of disability solely under the “regarded as” test. Pub. L. No. 110-325 § 6(a)(1).
³ Although the language of the ADA includes only a direct threat to “other individuals in the workplace,” 42 U.S.C. § 12113(b), the EEOC’s implementing regulations include direct threats to “the individual or others in the workplace.” 29 C.F.R. § 1630.15(b)(2) (emphasis added). The Supreme Court upheld the validity of the EEOC’s more expansive definition in Chevron U.S.A. Inc. v. Echazabal,536 U.S. 73 (2002).
⁴ Enica v. Principi,544 F.3d 328, 338 (1st Cir. 2008).
⁵ U.S. Airways, Inc. v. Barnett,535 U.S. 391, 402 (2002) (ADA). The plaintiff “bears the burden of proposing an accommodation that would enable him [or her] to perform [the] job effectively and is, at least on the face of things, reasonable.” Kvorjak v. Maine,259 F.3d 48, 55 (1st Cir. 2001) (ADA); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 258-60 (1st Cir. 2001) (ADA) (once plaintiff has met his or her burden, defendant bears burden of proving that the proposed accommodation would be an undue hardship); see also id. (discussing the “well recognized tension” between the plaintiff’s and the defendant’s burdens).

Beyond this division of the responsibility for proposing and proving the availability of a reasonable accommodation after the fact (at trial), the Equal Employment Opportunity Commission’s implementing regulations provide that “it may be necessary for the [employer] to initiate an informal, interactive process” with the employee in order to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3) cited in Kvorjak,259 F.3d at 52. An employer may be liable for a failure to engage in this interactive process if the plaintiff can demonstrate that “had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job’s essential functions.” Kvorjak,259 F.3d at 52; Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996) (ADA) (upholding judgment for defendant but noting that “[t]here may well be situations in which the employer’s failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA”). However, a plaintiff who refused to participate in the interactive process may not base an ADA claim on the failure of that process. Phelps v. Optima Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 2001) (ADA). Most recently the First Circuit has said:

In some cases, an employee’s request for an accommodation may trigger a duty on the part of the employer to engage in an interactive process. As part of this process, the employer is “expected to engage in a meaningful dialogue with the employee to find the best means of accommodating that disability.” Although the degree of interaction required varies in accordance to the circumstances of each case, the process requires open communication by both parties, and an employer will not be held liable if it makes “reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed....” Where a breakdown in the process has been identified, “courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.” For instance, “[a] party that obstructs or delays the interactive process is not acting in good faith.” Though the issue of good faith is relevant in examining the interactive process, a showing of discriminatory intent or animus is not required in cases alleging a failure to accommodate. Instead, “an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the propose accommodation would create undue hardship for its business.” Furthermore, the “duty to provide a reasonable accommodation is a continuing one, however, and not exhausted by one effort.”

⁶ Id.; Tobin v. Liberty Mutual Ins. Co.,553 F.3d 121, 148 (1st Cir. 2009) (“[U]nlike some acts of discrimination ― such as retaliation for an employee’s exercise of protected rights―rejection of a requested accommodation does not by itself suggest that the employer knew its conduct may be in violation of the law.”)
⁷ The assessment of whether an accommodation is reasonable must be individualized and situation specific; a court may not use per se rules. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000) (ADA). However, the Supreme Court has said that “ordinarily” an accommodation that would run afoul of a seniority system is not reasonable, U.S. Airways, Inc. v. Barnett,535 U.S. 391, 403 (2002) (ADA), and that a plaintiff must “show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Id. at 405.
⁸ This list should be modified in accordance with the facts of the case.
⁹ For examples of cases involving specific types of accommodation, See: Kvorjak v. Maine,259 F.3d 48, 57 (1st Cir. 2001) (ADA) (work at home); Phelps v. Optima Health, Inc., 251 F.3d 21, 26-27 (1st Cir. 2001) (ADA) (job sharing and job creation); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001) (ADA) (“permission to walk away from any stressful conflict”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000) (ADA) (additional leave beyond that allowed by the employer’s leave policy); Ward v. Massachusetts Health Research Institute,209 F.3d 29, 37 (1st Cir. 2000) (ADA) (flexible work schedule); Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 20 (1st Cir. 1998) (ADA) (reallocation of job duties); Criado v. IBM Corp.,145 F.3d 437, 443 (1st Cir. 1998) (ADA) (leave of absence and leave extension); Equal Employment Opportunity Commission v. Amego, Inc., 110 F.3d 135, 147-48 (1st Cir. 1997) (ADA) (reallocation of job duties).
¹⁰ Phelps v. Optima Health, Inc., 251 F.3d 21, 26-27 (1st Cir. 2001) (ADA). Furthermore, the fact that an employer voluntarily offered an accommodation at one time does not mean that it must offer the same accommodation in a subsequent situation. Id. at 26 (“to find otherwise would discourage employers from granting employees any accommodations beyond those required by the ADA”).

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2 PJI 3.2 | REASONABLE ACCOMMODATION

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